A few months later than promised, the Department of Homeland Security today updated guidelines its agents are to use when deciding whether initiate immigration enforcement actions. In a memo signed by Secretary of Homeland Security Alejandro Mayorkas, DHS commits to a comprehensive review of individual migrants to gauge whether they “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
Adopting three categories of threat, the department’s newest enforcement priorities repeat longstanding criteria. Despite that similarity with past enforcement priority schemes, the Mayorkas memo instructs DHS personnel to also weigh “the gravity of an apprehension and removal on a noncitizen’s life, and potentially the life of family members and the community.” In this way, DHS appears interested in taking a broader view of enforcement actions, recognizing that moving a migrant into the immigration prison and removal pipeline has severe consequences for a migrant, their relatives, and others.
As with earlier enforcement priorities policies, the national security category remains narrow. People who have engaged in terrorism or espionage (or are suspected of having done so) fit the national security prioritization. The memo also allows DHS staff to fold into this category people “who otherwise pose a danger to national security,” a description that is left undefined.
The new enforcement priorities memo goes into much more detail regarding threats to public safety. Here Mayorkas instructs department staff to focus on people who have committed “serious criminal conduct.” Unlike past administrations and, indeed, the Biden administration’s interim enforcement priorities guidelines (see here and here), DHS staff are to avoid “bright lines or categories” in favor of an individualized review of “the totality of the facts and circumstances.”
To guide DHS personnel’s discretion in reviewing the total set of facts and circumstances, the memo lists several factors that push in favor of initiating enforcement action and others that push in favor of declining enforcement action. According to the memo, the following factors militate in favor of enforcement:
- the gravity of the offense of conviction and the sentence imposed,
- the nature and degree of harm caused by the criminal offense;
- the sophistication of the criminal offense;
- use or threatened use of a firearm or dangerous weapon;
- a serious prior criminal record.
Pushing agents to decline enforcement are the following factors:
- advanced or tender age;
- lengthy presence in the United States;
- a mental condition that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment;
- status as a victim of crime or victim, witness, or party in legal proceedings;
- the impact of removal on family in the United States, such as loss of provider or caregiver;
- whether the noncitizen may be eligible for humanitarian protection or other immigration relief;
- military or other public service of the noncitizen or their immediate family;
- time since an offense and evidence of rehabilitation;
- conviction was vacated or expunged.
The DHS memo is clear that these are not exhaustive lists of factors. Instead, it tells staff to “review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue.” Indeed, later the memo notes that “exercise of workplace or tenant rights, or service as a witness in a labor or housing dispute, should be considered a mitigating factor in the exercise of prosecutorial discretion.”
By adopting a broader view of migrants and their role in U.S. society, the Mayorkas memo seems to be pushing the department toward a more humanitarian vision of migrants. Criminal history remains relevant, but the factors that militate against enforcement actions suggest that DHS leadership takes a more welcoming view of migrants as people whose misdeeds shouldn’t be ignored but which shouldn’t become an anchor from which escape is virtually impossible.
On a practical level, these instructions give a lot of discretion to DHS personnel, a feature that Mayorkas seems to understand. I think that is why the memo lays out training, oversight, and data collection requirements. In addition, Mayorkas instructs DHS components to create a case review process that migrants or their lawyers can use.
Despite those checks, DHS headquarters has a lot of work ahead of it to convert the secretary’s instructions into on-the-ground practices. Totality of the circumstances reviews are common in courts, but they are rare in immigration policing affairs. It is a lot easier for Customs and Border Protection and Immigration and Customs Enforcement agents to search for one or two red flags in the form of specific criminal history than it is to assess the totality of a person’s life circumstances and how their apprehension or removal might impact others.
The border security threat category focuses on people caught at or near the border “while attempting to unlawfully enter the United States” and individuals “apprehended in the United States after unlawfully entering after November 1, 2020.” It’s unclear to me how the administration imagines treating people intending to request asylum. In recent years, many Central Americans have entered the United States to request asylum which applies only to people who are physically present in the United States. Lacking the government’s permission to enter the country, they are entering unlawfully but exactly as required by U.S. asylum law enacted by Congress.
What Does the Memo Mean?
Today’s memo applies to ICE, CBP, and the U.S. Citizenship and Immigration Services units at DHS. Beginning on November 29, 2021, it replaces guidance issued in February by ICE’s acting director Tae Johnson as well as an earlier memo released on President Biden’s first day in office by the then-acting Secretary of Homeland Security David Pekoske (itself partly enjoined pending litigation). It’s likely that we will see ICE and potentially also CBP release separate instructions for their employees in the coming weeks as those agencies often provide specific guidance applicable to their own work.
My major concern with today’s memo is whether DHS leadership will be able to turn the secretary’s directive into meaningful practices across the country. There is reason to be skeptical. DHS’s two immigration law enforcement components—CBP and ICE—have a history of opposing moves to focus their enforcement practices more narrowly, as the Mayorkas memo demands. At one point, ICE’s union even sued the Obama administration over its enforcement policies. Without a cultural shift that goes deep into CBP and ICE, the latest memo is likely to struggle to become reality.
Will Mayorkas and the rest of the DHS leadership team be willing to impose consequences on department components or individual officers who refuse to follow along? It’s not enough to rely on migrants or their attorneys to request review in individual cases. Nor is it enough to hope that advocates hold the department to account. Change should also come from within the department.